The unconstitutional decision by a three judge panel of the Ninth Circuit U.S. Court of Appeals to uphold Judge James Robart’s temporary restraining order halting the implementation of President Trump’s executive order on refugees and immigration may not stand.
“A judge on this Court made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on February 9, 2017 should be reconsidered en banc,” Chief Judge Sidney Thomas wrote in a document filed with the court late Friday.
“A sua sponte en banc call having been made, the parties are instructed to file simultaneous briefs setting forth their respective positions on whether this matter should be reconsidered en banc,’ Judge Thomas added.
Now that Jeff Sessions has been confirmed as Attorney General, it’s a good bet the briefs and arguments presented by the Department of Justice will be of a higher quality of those made before Judge Robarts and the three judge panel of the 9th District.
As for the plaintiffs, the state of Washington and the state of Minnesota, they may find a full panel of the Ninth Circuit not quite as politicized as the three judge panel who accepted their arguments that President Trump’s campaign statements were relevant considerations in making their ruling.
“The briefs should be filed on or before 11:00 am, Pacific time, on Thursday, February 16,” Judge Thomas concluded.
Here’s what Glenn Reynolds, known for his Instapundit blog, and a professor of Constitutional Law at the University of Tennessee, had to say about this breaking curve ball:
AT THE NINTH CIRCUIT, a sua sponte motion for en banc rehearing of the immigration decision. Note that even if the court doesn’t go for rehearing, this opens it up for unhappy judges on the 9th who weren’t on the original 3-judge panel to file blistering dissents. Which will be there for the Supreme Court to read if it reviews the panel decision.
“The 9th U.S. Circuit Court of Appeals — which ruled Thursday against reinstating President Trump’s travel ban affecting seven terror-prone countries — has an unusually high reversal rate before the U.S. Supreme Court,” the Daily Caller reported on Thursday:
Eight of out of 10 cases from the 9th Circuit reviewed by the Supreme Court are overruled, according to a 2010 analysis published by the American Bar Association. The 9th Circuit, which is known for its liberal tendencies, has the second-highest reversal rate of the 13 appellate courts below the Supreme Court.
The Tennessee Star will be following this breaking story closely over the coming days.